A report in the student newspaper from the University of Sydney (Honi Soit, March 13, 2016) records that

The University of Sydney Union (USU) has threatened to deregister the Sydney University Evangelical Union (EU) from the Clubs & Societies program over the latter’s requirement that all members must make a declaration of faith in Jesus Christ.

In other words, a student religious group is being told that they may no longer be registered to use University facilities or receive the financial support other groups receive, because they make it a requirement of membership that someone support that religion. This is a very disturbing development for religious freedom at the University of Sydney, and especially if it presages similar developments around Australia. What is going on here? And is this move lawful, or not? 

Background to the dispute

The Sydney University Evangelical Union is a student Christian organisation which has operated at the University since 1930. Its aims are stated to be:

1. To present students with the Christian Gospel and to lead them to a personal faith in the Lord Jesus Christ.
2. To strengthen Christians in their faith and witness and to encourage them to continually submit every aspect of their life to the Lordship of Jesus Christ.
3. To ensure that Christians in the University are made aware of the nature, needs and challenge of Christian service at home and abroad.

One would think that, in order to achieve those aims, it is reasonable that all the members of the group share a common commitment to the Christian faith. However, the USU, which is the general student body governing “Clubs and Societies” at Sydney University, has decided that they can no longer tolerate any of the clubs having restrictive (what they call “discriminatory”) criteria for membership. From November 2014 the USU “C&S Regulations” have provided, in s 4(b):

(i) Ordinary membership of Clubs and Societies must be equally accessible to all USU Members… (iii) Exemptions to Sections 4.b.i and 4.b.ii. may be granted to Clubs and Societies that provide autonomous space for specific special-needs groups in society, subject to Board approval.

This is apparently the regulation which has now led to an ultimatum being issued to the EU that they must remove their requirement for members to acknowledge Jesus Christ as Lord, or face de-registration by March 31.

Eternity Magazine reports (14 March 2016) that in fact a further “clarification” was added in November 2015:

In late November 2015, the Clubs and Societies branch of the USU released updated regulations, including a specific requirement that clubs and societies “may not make ordinary membership or associate membership conditional on the beliefs or characteristics of an applicant, including (but not limited to) a person’s race, gender, sexuality, age, ability, religious beliefs or cultural background.” The same requirement applies to Executive positions within clubs and societies.

In response, the President of the EU has called a special meeting of members to vote on a response to the USU “ultimatum”, although at the same time making clear the view of the current Executive that the membership requirement should be retained:

“The Executive believes that individuals who wish to join any society need to be able to ascribe to the core beliefs, objects and aims of the society – which for a Christian society necessarily include faith in the Lord, Jesus Christ.”

For further comment on the facts and the relevance of beliefs to a religious or political group, see Andy Judd’s comment “When did student politicians lose their sense of irony?” (March 15, 2016).

It is worth noting that the USU is not claiming that there are students who are missing out on any particular benefits by not being members. Any social events or public meetings run by the EU are open to all comers, and non-members are not charged any more than members (or at all). The only “benefit” that is being denied to anyone who is not a member of the organisation, is the ability to vote in meetings on the direction and policy of the group, or to elect leaders.

On the other hand, should the EU be de-registered, presumably it will no longer be given free access to University meeting rooms or publicity outlets, nor will it receive the (fairly modest) subsidies provided by the USU to clubs for social events.

The meaning of “discrimination”

So what motivates the USU move? The Honi Soit report suggests that the very idea of a “religious litmus test” is offensive to some. The Vice President of the USU refers to “maximising participation” in the Clubs and Societies Program. There is a need to act on the basis of “inclusion”, and limiting membership on the basis of belief “is no less exclusionary than requiring candidates to be of a particular sexuality or gender identity”.

Given the lack of practical detriments occasioned by the current rule (and assuming, which seems likely, that there is no current plan to “stack” meetings with atheists and take control of the group to change its focus), it seems that the motivation for the move may come from something which has been recently described as a “shift” in the understanding of the purposes of the concept of “discrimination.”

An excellent article by Harrison and Parkinson, “Freedom Beyond the Commons: Managing the Tension Between Faith and Equality in a Multicultural Society” (2014) 40(2) Monash University Law Review 413, explores these issues in great detail. But one insight is particularly relevant here, I think. The authors summarise some of their findings by noting that:

While the argument is developed in much more detail than can be summarised here, the point is that there has been a subtle shift in anti-discrimination thought, from the basic premise that people ought not to be denied access to, or participation in, public goods such as work or access to facilities, on account of irrelevant characteristics; to a view that the mere act of treating one person differently from another person somehow creates a “status harm” which demeans the differently treated person and attacks their “dignity” (see e.g. the article at p 425.) Along with this has come a failure to recognise that in a multi-cultural, pluralist, society there will be room for different groups to function in accordance with their own “community identity” and “ethos”. Indeed, the authors point out that international human rights instruments (such as art 27 of the International Covenant on Civil and Political Rights) have long recognised the right of religious minorities to practice their own religion in community with other members of their group.

The strength of the shift in thinking in this area is brought into sharp focus by the Honi Soit report that the Vice-President of the USU, when challenged about the human rights norms in the area of recognition of religious freedom, dismissively noted that “the USU is yet to sign an international treaty”. It seems astonishing that international human rights considerations should be treated in such a cavalier way by a body meant to represent University students in the 21st century.

The law on the issue?

Has the USU acted unlawfully, then? It is true to say that international treaties are not directly binding on Australian organisations, but there may be some reason to doubt that the policy spelled out by the USU is entirely lawful.

One consideration is that the USU Constitution itself states that the body’s Objects include, at s 3.1(b), to:

work at all times towards creating an environment free from all forms of discrimination and harassment

The word “discrimination” is the important one here. It could plausibly be argued by not only the EU, but by all religious and political groups established under the USU guidelines, that a rule requiring membership for “all comers” regardless of their “beliefs” (as noted in the November 2015 guidelines), is wrongfully discriminatory against such groups, in contrast to other socially oriented or activity oriented groups. That is because religious and political groups, such as the EU or the ALP Club, have as their aims the promulgation of, and action in accordance with, a set of beliefs about the world or human society. That their members have such beliefs in common is relevant to their activities and their very existence.

But for those who join the Fencing Club or the Drama Society, there is no need for such agreement on world-views. The decision to exclude religious and political groups from the benefits of club registration, is a decision to impose a detriment on those groups on the basis of their view that their members should share beliefs. Arguably, however, whether or not clubs have members with shared beliefs, or not, is irrelevant  to the question whether the clubs can function for the benefit of the University community.

Of course, there may be some clubs or potential clubs, whose beliefs would lead to behaviour that is regarded as clearly unacceptable or unlawful. (A “White Supremacist” club, perhaps, or an “Aztec Revival” club proposing to conduct human sacrifices in the quad.) In that case a decision can be made by weighing up the harm caused by the specific set of beliefs. But to impose a general requirement that no club can condition membership on shared beliefs, is to go too far, and is arguably itself discriminatory.

Some may be wondering why I have not suggested that the USU’s requirement is unlawful as discriminating against religious groups on the grounds of their religion. One reason this argument is not available is that there is no general prohibition of religious discrimination under NSW law. (A situation I have previously suggested should be corrected.)

However, there is a further argument that may carry some weight in the specific circumstances of this case. The University of Sydney is established currently (though of course it has a much longer previous history) under the NSW University of Sydney Act 1989. Section 31 of that Act provides as follows:

31 No religious test or political discrimination

A person is not, because of his or her religious or political affiliations, views or beliefs, to be denied admission as a student of the University or to be taken to be ineligible to hold office in, to graduate from or to enjoy any benefit, advantage or privilege of the University.

This may provide further grounds for holding that what the USU is imposing is unlawful. The argument may run that “persons” (members of religious or political clubs, i.e. “affiliations”) are being denied the enjoyment of the “benefit, advantage or privilege” of being a part of a registered club of the University in which they can express their shared religious or political belief with like-minded others. The ground of the denial is their very “affiliation” with others of similar beliefs.

The slight weakness in this argument, of course, is that the USU is not a direct part of the University of Sydney. It is a separate, unincorporated, body which provides a number of student services. Nevertheless, it is clear the the University retains ultimate control over the USU- f0r example, clause 21 of the USU Constitution provides that the Vice-Chancellor may authorise an investigation into, among other things, “governance irregularities” in the USU (which presumably may include the way that the Clubs and Societies Rules operate.) The USU is, in the end, merely the way that the University has chosen to provide the “facilities” which s 7 of its Act empowers it to provide for its students. It is possible, then, that the University might be held accountable for a breach of its obligation not to deny benefits to students on the grounds of their religious or political affiliations.

It is to be hoped that the USU will reconsider its exclusionary and discriminatory policy before it needs to be challenged by a range of political and religious groups whose proper operation will be impaired by being denied registration. It certainly does not seem that the current policy will in any way improve “participation” in the Clubs and Societies Program, when it seems to be pushing students with strong convictions about religion or politics away from USU membership.